6th Circuit

Should Therapists Be Able to Turn Away Clients on Moral Grounds?

By David Lat

Judge Jeffrey Sutton

Over the weekend, Mark Oppenheimer wrote an interesting New York Times piece about the Sixth Circuit’s recent ruling in Ward v. Polite (PDF). In that case, Judge Jeffrey Sutton — noted feeder judge, judicial hottie, and possible SCOTUS nominee in a Republican administration — handed a (partial) victory to Julea Ward, an evangelical Christian who sued various teachers and administrators at Eastern Michigan University, where she had been studying counseling.

Here’s a concise summary of the facts, from the opening to Judge Sutton’s opinion (which is wonderfully clear; he’s great at explaining complex legal issues to large lay audiences; see also his Obamacare opinion):

When the university asked Ward to counsel a gay client, Ward asked her faculty supervisor either to refer the client to another student or to permit her to begin counseling and make a referral if the counseling session turned to relationship issues. The faculty supervisor referred the client. The university commenced a disciplinary hearing into Ward’s referral request and eventually expelled her from the program. Ward sued the university defendants under the First and Fourteenth Amendments.

Ward claimed that her expulsion violated her free speech and free exercise rights. The district court granted summary judgment in favor of the university, but the Sixth Circuit reversed. At the same time, the Sixth Circuit held that Ward wasn’t entitled to summary judgment in her favor either: “At this stage of the case and on this record, neither side deserves to win as a matter of law.” So perhaps we’ll end up with a trial.

Who’s in the right here, Ward or the university? Let’s discuss….

double red triangle arrows Continue reading “Should Therapists Be Able to Turn Away Clients on Moral Grounds?”

Quote of the Day: Throw the Court a Bone

By Staci Zaretsky

This is perhaps the dog-gonest case ever to reach a federal appellate court.

– Judge Ronald Lee Gilman, writing for Sixth Circuit in O’Neill v. Louisville/Jefferson County Metro Government, a case that involved the forcible implanting of microchips in a family’s dogs without consent.

Pregnant Woman Takes Bar Exam While in Labor, Delivers Baby Right After!

By David Lat

'These MBE questions are way easier than the practice ones!'

We thought we had a winner for most gutsy bar exam performance of July 2011. On Thursday, a woman taking the New Jersey bar exam passed out during the test — then picked herself up off the floor, and went right back to typing.

That’s impressive — but we may have spoken too soon. Here’s a labor-intensive story that tops it.

“A friend of mine went into labor while taking the Illinois bar exam,” a tipster told us. “She calmly finished, went to the hospital, and had her baby an hour or two later. Girl’s a real trooper.”

“A certain Northwestern Law alumna went into labor during the second day of the Illinois bar,” said a second source. “She finished the exam and had her baby, her first, at 5:58 p.m. I think that is worth noting.”

You better believe it’s worth noting. If ever there was a baby immaculately conceived by a lawgiver, this might be the one.

We have all the details — including a picture of the Bar Exam Baby, whom we’ll nickname “Baby Bar”….

double red triangle arrows Continue reading “Pregnant Woman Takes Bar Exam While in Labor, Delivers Baby Right After!”

Quote of the Day: In Da Club

By David Lat

If I were in their role and in their position, I probably wouldn’t understand it either, that a club really can’t attract minority members.

– Judge Gilbert S. Merritt Jr. of the Sixth Circuit, commenting to the New York Times about two of his colleagues on the court — Eric L. Clay and R. Guy Cole Jr., both African-American — and their strong reactions against a bankruptcy judge’s membership in an all-white, all-male country club.

(Judge Merritt is also a member of the Belle Meade Country Club, although an honorary one without voting privileges.)

Judge Allowed To Belong To All-White Club (Because He’s Trying Really Hard To Make It Better)

By Elie Mystal

Does this sign also mean no blacks or women allowed?

It’s the ruling that is splitting the Sixth Circuit apart. A federal bankruptcy judge, George Paine II, belongs to an all-white country club in Nashville. But there is a pesky judicial code of conduct that says that judges “should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin,” according to the New York Times (gavel bang: ABA Journal).

That seems cut and dry to me. An all-white, all-male country club sounds a hell of a lot like an organization practicing “invidious discrimination.” But I’m not on the Sixth Circuit.

And the Sixth Circuit essentially told Judge Paine: guys in my high school used to belong to discriminatory clubs all the time, it was no big deal.

In a 10-8 decision, the circuit decided to allow Paine to continue his membership in the club and on the bankruptcy court.

So that code of judicial conduct means what exactly?

double red triangle arrows Continue reading “Judge Allowed To Belong To All-White Club (Because He’s Trying Really Hard To Make It Better)”

Sex Pill Peddler Makes It Hard for the Po-Po to Peep at Your Email

By Kashmir Hill

Why is Bob smiling? Because police now need a warrant to check his email (joke stolen from Julian Sanchez).

Thanks to a huge decision out of the Sixth Circuit, your email and the Fourth Amendment just got better acquainted. The police need to get a warrant to take a peek at the contents of someone’s inbox, writes Judge Danny Boggs — once rumored to be on the SCOTUS shortlist — in the court’s opinion (PDF, via a thrilled EFF).

The court says that the 1986 Stored Communications Act, which grants law enforcement access to email older than 180 days old with a simple subpoena or court order, is unconstitutional, since it enables the police to conduct unreasonable searches.

“This is a very big deal,” writes law professor Paul Ohm. “[T]his is the opinion privacy activists and many legal scholars, myself included, have been waiting and calling for, for more than a decade. It may someday be seen as a watershed moment in the extension of our Constitutional rights to the Internet.”

The case that led to the decision dealt with extensions of a different variety. The defendant that challenged the po-po’s warrantless search of his email is Steven Warshak, the mastermind behind Enzyte, a questionable herbal supplement purported to increase the size of a man’s erection. Sometimes, new constitutional protections pop out of the strangest places…

double red triangle arrows Continue reading “Sex Pill Peddler Makes It Hard for the Po-Po to Peep at Your Email”

Morning Docket 12.30.08

By Eliza Gray

baby devil.jpg

* SCOTUS may hear the case of a Texas woman who claims that an extreme religious group forced her to “exorcise her demons”, disturbing her so much that she later attempted suicide. [The Atlanta Journal-Constitution]

* On Wednesday, the federal court in Manhattan will start considering information that will infect the investor’s in Madoff’s Ponzi scheme. Furthermore, Judge Louis L. Stanton of the U.S. District Court will consider whether people who invested in “feeder funds” with other Wall Streeters who invested in Madoff’s fund will be covered under the Securities Investor Protection Corporation–a federal fund that protects investors in cases like these. [The New York Times]

* The federal government announced a settlement over a developers who build projects on wetlands in Michigan’s Midland and Bay counties–a case that has gone on for decades. [The Chicago Tribune]

*Former New York City police Commissioner Bernard Kerick pleaded not guilty in a federal court to charges of tax evasion and corruption. [CNN.com]

* Store vendors angered by department store’s mark-downs may make the stores cover more of the losses. If they succeed, they could get back $ 1.2 billion from Macy’s, Saks Inc., Dillard’s, Nordstrom, Kohl’s and JC Penney. [Bloomberg.com]

* “The 6th Circuit struck down a vehicle safety law in Michigan that banned drivers from hanging any view-obstructing baubles from their rearview mirrors. [Courthouse News Service]

Legally-Themed Racehorse Names? Your Nominations, Please

By David Lat

Affirmed race horse racehorse.JPGRecently we’ve been thinking about law-related names for racehorses. The subject came up when we were reading about how Big Brown, the 2008 Kentucky Derby winner, might win the Triple Crown and join the company of Affirmed (pictured) — the last winner of the Triple Crown, in 1978.
Hearing about a racing horse named “Affirmed” led us to start thinking about other legally-themed horse names. A few ideas:
– “Reversed” (or “Reversed and Remanded”)
We liked how it played off of “Affirmed.” But it’s “probably not the kind of message you want to send to the oddsmakers,” said a friend.
– “Cert Denied”
Kinda badass, no? We’ll put it down as a possibility.
– “GVR”
Suggested by another friend, to continue on the Supreme Court disposition theme. “GVR” stands for “Grant, Vacate, and Remand” — which can, depending on the circumstances, be something of a benchslap. But maybe it’s too technical, appreciated only by SCOTUS junkies?
– “Desuetude”
Nominated by a third friend (in the midst of studying for law-school finals). It’s erudite, but a bit short on sex appeal.
Have an idea for a law-related racehorse name, à la Affirmed? If so, feel free to leave it in the comments. If we get enough nominations, maybe we’ll hold a contest. Also, feel free to weigh in on the names previously mentioned, if you strong feelings about any of them.
Update: Please make sure that your nomination complies with these naming rules (posted by a helpful commenter).
Further Update: Okay, we’ve reached the 400-comment mark on this post, so we’re closing the thread. Poll to follow shortly.
More about racehorses and the law, after the jump.

double red triangle arrows Continue reading “Legally-Themed Racehorse Names? Your Nominations, Please”

Morning Docket: 01.24.08

By David Lat

* Renomination of Steven Bradbury to head OLC seen as diss to Dems. [New York Times]
* Barry Bonds seeks dismissal of perjury charges. Depends on what the meaning of “is” is? [San Francisco Chronicle via How Appealing]
* Senate debates whether to grant phone companies immunity from suits arising out of their helping out on warrantless wiretapping. [Washington Post]
* Former Illinois Gov. George Ryan seeks Supreme Court review of his conviction. [Chicago Tribune via How Appealing]
* Also turning to the SCOTUS: cheeky pro se litigant who forestalled foreclosure for 11 years. [WSJ Law Blog]
* You’ve got mail? Maybe not, at least at the White House, which is having some email archiving problems. [Washington Post]

Lawsuit of the Day: Sixth Circuit Horses Around With Literary References

By David Lat

Sally Hemings horse filly Abovethelaw Above the Law blog.jpgNews of an amusing appellate decision, from that leading source of legal news, ESPN:

A federal appeals court ruled Tuesday that a filly can’t be named “Sally Hemings” after Thomas Jefferson’s most famous slave and reputed lover.

The 6th Circuit Court of Appeals in Cincinnati ruled that the Jockey Club can legally bar horse owner Garrett Redmond from naming his 4-year-old horse after Hemings.

We can understand the Sixth Circuit’s reluctance to allow anyone to “ride Sally Hemings.” Thomas Jefferson already tried that, and his historical reputation will never be the same.
But the court’s decision was grounded in law as well as good taste:

Judge Alice Batchelder, writing for the three-judge panel, said Redmond has other options that may be approved by the Jockey Club, which forbids horse owners from using names of famous or notorious people without special permission.

No “famous or notorious” people? So much for Redmond’s fallback option, “Wanda Sykes.”
Did being denied this name of choice have an adverse effect on the horse’s performance? Quite possibly:

The horse, now known as “Awaiting Justice,” ran at Churchill Downs on July 1 and at Ellis Park in Henderson on July 25. She did not finish in the top 3 in either race.

A little more discussion, after the jump.

double red triangle arrows Continue reading “Lawsuit of the Day: Sixth Circuit Horses Around With Literary References”

Motion to Reschedule on Account of Being Whipped?

By David Lat

We come not to rank on this motion, but to praise it. It’s cute, it’s funny, and it’s appropriate Friday fodder:
In re Azbill 2 bike trip motion Abovethelaw Above the Law blog.JPG
Could one make fun of this hapless husband, for letting his wife drag him on a 350-mile bike tour? Sure. But this motion, while chuckle-worthy in a sitcom sort of way, isn’t TRULY embarrassing to the lawyer in question — unlike, say, moving for an extension on account of “inebriation constituting excusable neglect.”
We hope the court granted the motion, and that Mr. Azbill’s counsel is enjoying the bicycle trip — perhaps taking place as you read this.
Update: A commenter reports: “motion was granted on 7/23. counsel was able to ‘please his wife.’”

Breaking: Sixth Circuit Smacks Down ACLU in NSA Wiretapping Case

By David Lat

A summary of the action, courtesy of Howard Bashman (aka “Ho Bash,” as one commenter dubbed him):

The U.S. Court of Appeals for the Sixth Circuit holds that the American Civil Liberties Union and its co-plaintiffs lack standing to challenge the National Security Administration’s interception without warrants of certain telephone and email communications…

Circuit Judge Alice M. Batchelder issued the lead opinion, and Circuit Judge Julia Smith Gibbons issued an opinion concurring in the judgment. Judge Gibbons’s opinion begins, “The disposition of all of the plaintiffs’ claims depends upon the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the TSP. Without this evidence, on a motion for summary judgment, the plaintiffs cannot establish standing for any of their claims, constitutional or statutory….”

And Circuit Judge Ronald Lee Gilman dissented. He would hold that the plaintiffs possess standing and that “the [Terrorist Surveillance Program] as originally implemented violated the Foreign Intelligence Surveillance Act of 1978.”

Is this ruling a surprise? Not so much. First, most legal analysts were deeply disappointed by the handiwork of Judge Anna Diggs Taylor (E.D. Mich.), the district judge in this case.
Second, here’s a telling detail from the Sixth Circuit website:
Sixth Circuit website Abovethelaw Above the Law blog.jpg
Does the Sixth Circuit website always feature a patriotic graphic of the United States filled with a flag pattern? Or is this just a special Fourth of July thing they haven’t gotten around to changing back yet?
ACLU v. NSA [U.S. Court of Appeals for the Sixth Circuit (PDF) via How Appealing]
Many Experts Fault Reasoning Of Judge in Surveillance Ruling [New York Times]

Morning Docket: 01.29.07

By B Clerker

typewriter typewriting keyboard Above the Law.jpg* With tax law, the sky’s the limit. Seriously. [CNN; TaxProf Blog]
* Slow… Typist… Sues… His… Law… School. Must have taken forever to type the complaint (especially with a last name like “Zachariasewycz”). [WSJ Law Blog]
* ACLU seeks disclosure on NSA wiretaps in the Sixth Circuit. [SCOTUSblog]
* Vote Roberts for Chief Justice! [SCOTUSblog]

Judge of the Day: Deborah Cook

By David Lat

Deborah Cook Deborah L Cook Judge Deborah Cook 6th Circuit Sixth Circuit.gifFederal judges represent some of the best and brightest minds the legal profession has to offer. Although there are exceptions, federal judges generally have incredible credentials and adhere to the highest ethical standards.
In contrast, state court judges tend to be icky. When you read in the news about a judge who sexually harassed a secretary, got arrested for drunk driving, or used a penis pump behind the bench, the odds are high that it will be a state rather than federal judge.
When a former state judge gets confirmed to a federal judgeship — as is increasingly the case, since state court judges are often “safe” picks in these politically charged times — does she shed her icky ways?
Not necessarily. Consider the tale of Judge Deborah L. Cook, a member of the Sixth Circuit since 2003. From Muckraker/CIR:

A federal judge identified by the Center for Investigative Reporting for making campaign contributions while on the bench has apologized for violating the judicial code of conduct.

Judge Deborah L. Cook of Ohio made two political donations after she was appointed by President Bush to the 6th U.S. Circuit Court of Appeals in 2003. A CIR report and story for Salon.com on Oct. 31 revealed that both Cook and a Clinton-appointed judge, Dean D. Pregerson of California, had apparently given campaign contributions, though federal judges are prohibited from doing so.

A pretty dumb-ass mistake. The limitations upon political activity by members of the judicial branch are familiar even to rookie law clerks. It’s something you learn about at clerk orientation.
Ah, orientation — that’s where Judge Cook lays the blame for her mistake:

“I violated this proscription against federal judges making political contributions early in what I hope will be a long tenure,” Cook wrote in her letter of apology [to Chief Judge Danny Boggs], which was filed with Judge Boggs’ order [resolving the complaint]. “Though not an excuse, my misstep here resulted from habit and a lack of awareness of the prohibition.”

Cook wrote that she was used to making contributions as a state judge. According to her letter, she did not attend the “New Judges School” after she was confirmed as a federal judge and “thus missed being alerted there to the federal canon.” The “Baby Judges School,” as it is often called by judges, is a non-mandatory training and orientation for newly appointed judges.

“Baby Judges School”: Ignore it at your peril.
A little bit more, after the jump.

double red triangle arrows Continue reading “Judge of the Day: Deborah Cook”

A Reader’s Guide to Above the Law

By David Lat

above the law logo.jpgA new website, like Above the Law, can take some getting used to. And we’re still working out various glitches and kinks. Please bear with us, and please give us your feedback about any problems you encounter; it’s very helpful. (And yes, we are considering a font overhaul. If you have views on that subject, pro or con, post ‘em in the comments.)
This is just a quick, admittedly pedantic post, to help familiarize you with the features of this site. Think of it as a little “user’s manual” for maximizing your enjoyment of ATL:

1. “After the jump” = Click on the little “Continue reading” link at the end of the post excerpt on the main page.

2. You can also read a post in its entirety, or generate a link to it, by clicking on either (a) the title of the post, or (b) the “Permalink” icon (that little paper-clip icon in the lower right-hand corner of each post).

3. You can email a post to a friend or colleague by clicking on the little envelope icon in the corner.

4. The most emailed articles appear in the column on the left-hand side of the page. We monitor this closely because it shows us what you, our readership, find most interesting. Then we can pander to you even more shamelessly.

5. You can append a comment to a post by clicking on the little bubble icon. Cute!

6. At the end of each post, after the words “Posted in:”, you’ll see what are called “Tags.” These are specific subjects discussed at Above the Law. If you click on the Tag in question, you’ll be taken to a page that collects all the posts about that topic. This allows you to see our coverage of a subject over time, or how a story unfolded.

Before we bore experienced readers to tears, here are two more novel things worth checking out:

1. The Forum. It’s in the left-hand column. If there’s not enough to do in the comments section, you can now start your own discussions completely independent of our ten or twelve chunks of commentary, news, and pining after litigatrices like Mary Kay Vyskocil and Rosemary Alito (that’s coming next month).

Registration can be anonymous. Why review that redline of the merger agreement when you can argue over whether HLS Dean Elena Kagan could destroy Columbia Dean David Schizer in a steel cage match? (See here.) Or speculate on who will be the next great “feeder judge” to the Supreme Court? (See here. And yes, we agree with “Mac”: judicial hottie Jeffrey Sutton (6th Cir.) is already funneling his kids to Nino. One this Term, one next Term).

To register for the Forum, click HERE. We reserve the right to indulge our god complexes and delete your posts (or ban users) for any reason whatsoever, including but not limited to: we thought the post was off-topic, the post was promoting Internet Viagra, or we were bored and deleting users is MU-HA-HA… fun. That said, we’re extremely lazy totalitarians and aren’t inclined to delete anything unless extremely provoked. Or bored.

2. The Archives. Also accessible through the left-hand column. If you click on the word “Archive” — no, we don’t think you’re retarded, we’re just really anal — you’ll be taken to the ATL archives, where past posts are collected and organized by topic and by date. We’ve actually been secretly “testblogging” here since July — think of it as our answer to the Katie Couric “shadow show” — so there’s a lot of stuff to check out, even though we only went “live” this week.

That’s enough administrative crap for now. Back to matters of, er, “substance”!

Every Unhappy Appellate Court Is Unhappy In Its Own Way

By David Lat

Among federal appeals courts, the Sixth Circuit is legendary for the lack of collegiality — nay, outright dischord — among its members. In this respect, it is perhaps rivaled only by the Ninth Circuit.
And the Sixth Circuit’s fine tradition of internal strife and judicial cattiness continues. In an opinion issued today, the fairly liberal Judge Martha Craig Daughtrey — mentioned back in 2000 as a possible Al Gore Supreme Court pick — delivered this bench-slap to her staunchly conservative colleague, Chief Judge Danny J. Boggs:

I write separately in order to express my dismay at Judge Boggs’s unjustified attack directly on both the capital defense bar and indirectly on the members of this court. For the chief judge of a federal appellate court to state that it is “virtually inevitable” that “any mildly-sentient defense attorney” would consider playing the equivalent of Russian roulette with the life of a client is truly disturbing. Such a comment is an affront to the dedication of the women and men who struggle tirelessly to uphold their ethical duty to investigate fully and present professionally all viable defenses available to their clients. It also silently accuses the judges on this court of complicity in the alleged fraud by countenancing the tactics outlined.

MEOW! Somebody pass the Fancy Feast — Martha’s getting hungry…
The U.S. Court of Appeals for the Sixth Circuit — still not one happy family? [How Appealing]
Poindexter v. Mitchell [U.S. Court of Appeals for the Sixth Circuit (pdf)]